Kelly v. Hogan

16 Mo. 215

Opinion

Rylahd, Judge,

delivered the opinion of the court.

The plaintiff sued the defendant in the Law Commissioner’s Court. The defendant answered ; a trial was had, and judgment given for the plaintiff. The defendant moved for a new trial, which was granted, and the cause again set for trial. On the trial day the plaintiff failed to appear, and was non-suited. A motion was afterwards made to set aside the non-suit, but the record no where shows what was the fate of this'motion';- ,however, in the course of time, the plaintiff obtained judgement against the defendant by default, without any notice of this non-suit having been set aside. The defendant then moved to set this judgment by default aside, his motion was overruled, and he excepts and brings the case here.

1. It is, in our opinion, erroneous to take judgment by default against the defendant, in any case, where there appears upon the record a judgment of non-suit, still remaining in force. This case comes from the Law Commissioner’s Court, being a daily court, always open. Nevertheless, when a party is non-suited, or a judgment by default obtained, and the non-suit or default is afterwards set aside, the commissioner should always have evidence that the plaintiff or defendant, as the case may be, has been duly notified of the state of the case, before a second trial is had, or a second non-suit or judgment by default taken by either party, or against either party.

For rendering judgment by default against the defendant in this case, under the circumstances appearing on the record, the judgment below is reversed, and the cause remanded for further proceedings, the other Judges concurring herein.